Shocker: Ars, Hollywood agree on need for ACTA openness

Hollywood's top lobbyist is being slammed for telling the government that Anti …

MPAA head Dan Glickman sent a letter yesterday to both Senator Patrick Leahy (D-VT) and to US Trade Representative Ron Kirk in which he called for a serious US push to pass the secretive Anti-Counterfeiting Trade Agreement. That's certainly expected—ACTA contains a host of goodies for Hollywood and the recording industry—but what came as a surprise was Glickman's irritation at various ACTA "protests" which create "apprehension over the Agreement's substance."

He's referring to online outlets that have hoisted the anti-ACTA flag over the last year, accusing the treaty of being a pretext for ramming "three strikes" laws through without Congressional oversight or empowering Customs agents to check the contents of your iPod. Based on our reporting, neither of these items appears to be in the draft text, but the secretive nature of the negotiations and the bland, impenetrable public statements about ACTA have fueled plenty of suspicion.

The process has created a debate over the very notion of "transparency" as applied to international negotiations, but it's not a discussion Glickman wants to be having at the moment. His letter argues that "outcries on the lack of transparency in the ACTA negotiations are a distraction. They distract from the substance and ambition of the ACTA…"—which sounds like a roundabout way of asking negotiators to ignore the cries of a clamoring public and simply get on with the business of cobbling together a Hollywood-friendly trade agreement.

This is certainly how groups like Public Knowledge are painting the letter; staff attorney Sherwin Siy called Glickman's words "a pathetic excuse for logic. It borders on the Chewbacca Defense for its use of non-sequitur. The 'substance and ambition' of the ACTA? And what, pray tell, is so important in the substance of ACTA that it trumps the fundamentals of open government?"

Or, in other words, "You bring the pitchforks, I've got the torches; we march on the castle of the evil tyrant come nightfall!" And, frankly, we should be marching on the castles of those who try to trump the fundamentals of open government and turn public power to private ends.

"We support this objective and encourage the US government to direct the [transparency] process so that we can engage in a meaningful dialogue on substance rather than procedural matters," says the letter.

Glickman & Co. are actually asking USTR to open the process further in order to have a debate on the issues raised by the text rather than a having arguments about transparency, or arguments about terrifying items that aren't actually in the text. Remove the process objections so we can talk about substance; isn't this exactly what the reform groups want?

Only real transparency will do

It sounds like a good idea to us, but of course much depends on what is actually done. The "open" process so far has consisted largely of draft texts shown to a few public interest lawyers under strict nondisclosure agreements—pretty pitiful stuff for a fast-tracked trade agreement that won't need Senate approval, but will try to export the DMCA to the rest of the world. This is being done in our name, and we want to see and weigh in on our trade agreement… before the negotiators are done and it becomes a fait accompli.

As for those negotiators, here's what they have to say. "A variety of groups have shown their interest in getting more information on the substance of the negotiations and have requested that the draft text be disclosed," said USTR this month (PDF). "However, it is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation. This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues. At this point in time, ACTA delegations are still discussing various proposals for the different elements that may ultimately be included in the agreement. A comprehensive set of proposals for the text of the agreement does not yet exist."

Glickman may care about little more than throwing a sop to critics in order to get the agreement concluded, but the USTR should in fact follow the MPAA lead on this and get serious about transparency, and quickly. ACTA is expected to be concluded in 2010, and asking for public input a couple weeks before signing is simply not good enough; as the outcry over ACTA has shown, people care about these issues in a way they did not a generation ago. They aren't going to be satisfied if they're presented with a stinker and asked to simply hold their noses.

Once real transparency arrives and the US drops its ridiculous claims about "national security," Americans—and the millions of other who will be affected by ACTA—can have a real debate about bringing DMCA-style anti-circumvention laws to the rest of the world and about whether noncommercial P2P activity can ever deserve criminal penalties.

USTR has made some steps toward transparency, including the creation of a special ACTA webpage, which supplies little specific information. But at least USTR is willing to hear from the public; the very brave and possibly foolish Kira Alvarez, a top USTR negotiator, has posted the phone number of her office. Members of the public with questions of ACTA can give her a call at 202-395-4510.

Glickman is being disingenuous - as expected - and misframing the issue - as expected: what worries Glickman and his employers is not the secretiveness of the process... what worries them is the increasing public awareness of that secretiveness, increasing public curiosity about WHY all the secretiveness, and increasing public awareness of the potential consequences of the treaty.

They're worried about massive public disapproval of ACTA that would result in its cancellation.

Originally posted by VulcanTourist:Glickman is being disingenuous - as expected - and misframing the issue - as expected: what worries Glickman and his employers is not the secretiveness of the process... what worries them is the increasing public awareness of that secretiveness, increasing public curiosity about WHY all the secretiveness, and increasing public awareness of the potential consequences of the treaty.

They're worried about massive public disapproval of ACTA that would result in its cancellation.

Whatever worries him, we can still agree that removing the transparency issue would be a good thing. At that point, we can have an actual argument on the merits.

Actually, copyright infringement being made a criminal act would be quite a good thing in one way, because the standard of evidence for criminal trials is significantly higher than that of Civil trials, which means that alot of the dodgy evidence the MPAA and co use would be tossed out or would not be enough for a conviction. Plus, criminal acts have set penalties, which means there'd be no more wildly insane fines.

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Originally posted by Nate Anderson:Whatever worries him, we can still agree that removing the transparency issue would be a good thing. At that point, we can have an actual argument on the merits.

There are no merits to this thing, it's just wild corporate wishes with no regard for what's best for the public (aka, an overhaul of copyright law)

Openness, good governance, and the right to know what your government is getting up to is a hell of a lot more important than some industry's piddly concerns, sorry, the "substance and ambition" of their pet treaty.

As an aside, there needs to be a penalty for misusing a national security designation to cover up information that doesn't actually impact national security. The laws and rules are there to keep the country safe, not to protect politicians and state organs from embarrassment. ACTA being the most blatant example out of many.

Originally posted by coslie:As an aside, there needs to be a penalty for misusing a national security designation to cover up information that doesn't actually impact national security. The laws and rules are there to keep the country safe, not to protect politicians and state organs from embarrassment. ACTA being the most blatant example out of many.

Yeah, WTF is this about? Don't you guys have enough spare ambulance chasers to sic on this? Make them do something useful for once.

Originally posted by ChrisAsmadi:Actually, copyright infringement being made a criminal act would be quite a good thing in one way, because the standard of evidence for criminal trials is significantly higher than that of Civil trials, which means that alot of the dodgy evidence the MPAA and co use would be tossed out or would not be enough for a conviction. Plus, criminal acts have set penalties, which means there'd be no more wildly insane fines.

Well, not really a good thing. Making an action a crime doesn't mean that one cannot pursue civil remedies, so copyright holders would be perfectly free to continue civil proceedings against infringers. What expanding the scope of criminal infringement would certainly do is further stretch law enforcement resources (if they actually go after infringers), and probably reduce law enforcement credibility (if they leave the law unenforced due to lack of resources or interest).

As for no more wildly insane fines, the penalties for criminal infringement can be just as insane as those for civil infringement if someone pushes hard enough to get the laws changed. Since the only group with any hope of getting US copyright laws changed in the near future is large copyright holders, changes to criminal infringement penalties won't be going down.

Well, the government certainly doesn't want anything in this to be public. The level of transparency under the current administration is a complete lie. Obama said he would have a transparent administration, but that says nothing based on his actions thus far, and the actions of Congress.

Also, the US government has already been breaking federal and state laws in terms of illegal wire-tapping. Add to that the covert relationships between the feds and ISPs in monitoring Internet traffic and violating the privacy rights of individuals and why would anyone think the Feds would want to be open or go public on ACTA.

The federal government stopped representing the people a long time ago. It represents corporations and that is it.

I have got plenty of elderdy people whom I help on my freetime to got interested about ACTA by informing them that copying one of their CD:s (with DRM) to HD equals several times of value of the house they have been living and fixing for decades.Kindly putting it... the responces from I got fromthem was really annoyed.Simplifying, for example that the laptops CD/DVD is breaking down, and if they want to have backups of anything in digital format those people own is a crime.

Originally posted by coslie:Openness, good governance, and the right to know what your government is getting up to is a hell of a lot more important than some industry's piddly concerns, sorry, the "substance and ambition" of their pet treaty.

Here's what openness in government means to me: every bill that each house of Congress votes on should be posted to the Internet in its entirety at least 72 hours before that vote. Secondly, no international treaty should become law until ratified by Congress, said treaty being published in full with the same pre-vote presentation required of normal legislation. Now, *that* would be openness. Do I think we will get it? Not a chance: too many Congressmen would have to admit their failure to read or comprehend the bills they vote up and down--aside from their respective pork clauses, that is. I wish I was exaggerating.

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As an aside, there needs to be a penalty for misusing a national security designation to cover up information that doesn't actually impact national security. The laws and rules are there to keep the country safe, not to protect politicians and state organs from embarrassment. ACTA being the most blatant example out of many.

True, but remember that it isn't the "laws and rules" that "keep the country safe." It's the enforcement of those laws and rules, along with extremely high levels of vigilance by security and law enforcement. There were plenty of laws on the books that did absolutely nothing to prevent 9/11.

Originally posted by ChrisAsmadi:Actually, copyright infringement being made a criminal act would be quite a good thing in one way, because the standard of evidence for criminal trials is significantly higher than that of Civil trials, which means that alot of the dodgy evidence the MPAA and co use would be tossed out or would not be enough for a conviction. Plus, criminal acts have set penalties, which means there'd be no more wildly insane fines.

I agree. I hope they do make it criminal. Then there would be oversight, and much higher legal requirements, and a trial process, and also the ability to find out how much it costs maintain copyrights. The longer the term, the more legal oversight, the more costly to society, and the more proof we have the more likely we go back to a much, much shorter term.

So, lets make it criminal activity to have any copyrighted items on you that you can't prove you have current and valid license to carry with you, and to take to another country, state or city (if its illegal across national boundaries, wouldn't it also be illegal within them?).

which means that alot of the dodgy evidence the MPAA and co use would be tossed out or would not be enough for a conviction. Plus, criminal acts have set penalties, which means there'd be no more wildly insane fines.

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I agree. I hope they do make it criminal. Then there would be oversight, and much higher legal requirements, and a trial process, and also the ability to find out how much it costs maintain copyrights. The longer the term, the more legal oversight, the more costly to society, and the more proof we have the more likely we go back to a much, much shorter term.

I love comments from people who have apparently next to no understanding of the legal process.

Making other levels of copyright infringement illegal changes nothing except that you potentially go to prison in addition to being sued, if there is a decision to file criminal proceedings. Also, making it criminal in no way guarantees higher degrees of transparency over the issues which would raise public awareness and disapproval. None of those matter or are even relevant to culpability, and even if a sentencing hearing were held (unlikely for something like this), they would not necessarily be used, especially not in the way some people feel they should be represented. It's almost guaranteed that the setting of any mandatory numbers (fines/jail time) would not involve any real debate based on real numbers, as they're punitive, and not related to real values.

Any numbers related to cost of the overall process are likely to be splintered (difficult to gather together in a meaningful way from different departments) and relatively vague/broad. Also, cost numbers are largely meaningless as a public issue for changes in the judicial system. If they were, marijuana wouldn't be illegal by any means, given the comparative intoxication levels/form of intoxication to alcohol and the overall cost burden on law enforcement, the judicial system, incarceration, and recurring related issues (black market issues, worsening behavior/offenses from incarceration theories, etc). Many other similar issues exist, and generally speaking arguments to "cost" almost never result in any substantive changes regarding the law that criminalizes the particular activity or determination of penalties.

The other side being missed here is that as a criminal offense, it's possible for the FBI/police to execute search warrants with reasonable suspicion and proof. More than one copyright case has hinged on MediaSentry alone simply because computers turned over in discovery did not have files on them at the time they were turned over, but potentially had been replaced/erased in the interim. A federally run MediaSentry type operation would not be sending you a cease and desist followed by a lawsuit, with plenty of warnings leading up to it. Their first action would be a search warrant and seizure. Good luck trying to wriggle out of that one based on questions of strength of evidence. MediaSentry probably wouldn't hold up in a criminal case, but it wouldn't really matter, because it wouldn't be the evidence being used.

Finally, if this happens, it opens up any evidence gathered during the criminal case for being used in a civil proceeding by the MPAA/RIAA. It essentially does their work for them. You wonder why they're salivating over the prospect?

The question is whether ACTA would actually instate harsher copyright criminal law than what currently exists federally, in the US. If it doesn't, then it's a rather moot point for us, and is probably more focused towards countries like China. If it does, then it's important to know exactly what is being called for. Of course, there are plenty of treaties we're signatory to which we essentially ignore when it suits us, but ACTA could easily be used as a wedge to provide extra momentum to push for ACTA provisions being made US law (or worse grandfathered in as a blanket domestic enforcement law). It's troublesome because in its current form, it in many ways comes across as an attempt to make an end run around our normal legislative process.

which means that alot of the dodgy evidence the MPAA and co use would be tossed out or would not be enough for a conviction. Plus, criminal acts have set penalties, which means there'd be no more wildly insane fines.

quote:

I agree. I hope they do make it criminal. Then there would be oversight, and much higher legal requirements, and a trial process, and also the ability to find out how much it costs maintain copyrights. The longer the term, the more legal oversight, the more costly to society, and the more proof we have the more likely we go back to a much, much shorter term.

I love comments from people who have apparently next to no understanding of the legal process.

Well, this is the internet, and that makes everyone an expert, after all.

I agree with your analysis of the criminal/civil question and your opinion that costs aren't an issue here. You summarized things very clearly, IMO.

To relate your post to my ongoing arguments with wordsworm and others, those exchanges make it very clear that when one side can shift the discussion to a moral framework, the other side will not grain traction without a moral counter-argument. For example, data about the costs of infringement for authors, or the costs of greater protections to authors, are irrelevant if the argument is that we have a moral obligation to protect a particular right.

That's why I'm so pessimistic about any sort of reform of copyright that reduces protections or terms: there's no moral argument available to those reformers that is strong enough in today's society to counter individual self-interest of creators and the claims of 'theft!'

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kaitliac:The question is whether ACTA would actually instate harsher copyright criminal law than what currently exists federally, in the US. If it doesn't, then it's a rather moot point for us, and is probably more focused towards countries like China. If it does, then it's important to know exactly what is being called for. Of course, there are plenty of treaties we're signatory to which we essentially ignore when it suits us, but ACTA could easily be used as a wedge to provide extra momentum to push for ACTA provisions being made US law (or worse grandfathered in as a blanket domestic enforcement law). It's troublesome because in its current form, it in many ways comes across as an attempt to make an end run around our normal legislative process.

This comment was edited by kaitliac on November 22, 2009 15:13

I think that ACTA is an important issue for the USA, even if it contains no new protections for copyright holders. As it stands, we have a shot at repealing or reforming the DMCA via legislative means. As soon as ACTA is passed, the DMCA is untouchable without complete renegotiation of ACTA (which won't happen). It's an effective means (whether deliberately chosen for this purpose or not) of preventing the backlash against the DMCA from amounting to anything.

To the North American commenters who think *they're* depressed and ripe for a dry humping - your wonderful Free Trade Agreement has already bent we Australians over and had its way with us...and now we get your homegrown New World ACTA/DMCA wonderfulness as well! And Why Oh Why can we have the situation where laws can be created that are going to affect all of our lives without Every Single Word therein being 100% open to viewing and/or consultation by We The Little People? Hard to do the right thing when you don't know where the lines were drawn! I feel we are all slowly being criminalised - and certainly not in *our* best interests.

Originally posted by themrnutz:To the North American commenters who think *they're* depressed and ripe for a dry humping - your wonderful Free Trade Agreement has already bent we Australians over and had its way with us...and now we get your homegrown New World ACTA/DMCA wonderfulness as well! And Why Oh Why can we have the situation where laws can be created that are going to affect all of our lives without Every Single Word therein being 100% open to viewing and/or consultation by We The Little People? Hard to do the right thing when you don't know where the lines were drawn! I feel we are all slowly being criminalised - and certainly not in *our* best interests.

Instead of blaming your woes on them evil 'Mericans, why not take a look at what your own government has done, or not done, to fix things?

Furthermore, it's not the "Americans" who are responsible for ACTA. It's essentially a vehicle for multinational corporations to extend their grasp. You have seen the list of people who were invited to help craft ACTA, yes?

Originally posted by ChrisAsmadi:Actually, copyright infringement being made a criminal act would be quite a good thing in one way, because the standard of evidence for criminal trials is significantly higher than that of Civil trials, which means that alot of the dodgy evidence the MPAA and co use would be tossed out or would not be enough for a conviction. Plus, criminal acts have set penalties, which means there'd be no more wildly insane fines.

Yes, but do you know that you can be found not guilty in a criminal court but still be sued in civil court? That means twice the legal fees as well.

The secrecy may have more to do with maintaining relations with these other countries and world diplomacy than it has to do with the US administration intentionaly keeping everyone in the dark. I know I'd be pissed if I was one of those other couintry and we all agreed not to talk about our trade agreement till it was over but then another country went and told eveyone all about it.

The rule in the US -- codified by statute -- when negotiating trade policy is that the negotiations will be "open and equitable" and that the negotiators must work toward fulfilling the "principal negotiating objective" of increasing transparency in the negotiations. See 19 U.S.C. 2901(b)(2)(3).

The heavy burden, therefore, is on the negotiators to justify any secrecy in their negotiations -- it is NOT on those who seek information about the trade talks to justify access to all relevant information.

In fact, the law prohibits the Executive Branch from entering into trade agreements (which are broadly defined) that do not make progress in meeting this transparency, and other, objectives. See 19 U.S.C. 2902(b)(2).